Is Obamacare Constitutional?

Two interesting columns this morning on the Supreme Court’s upcoming consideration of the Affordable Care Act, a.k.a. Obamacare. Jonathan Cohn, one of the very best writers on this subject, cuts to the chase: If the individual mandate — the requirement that everyone purchase health insurance — is unconstitutional, then Medicare and Social Security must be unconstitutional too, and vice versa. It seems to me that this argument is dispositive — unless the distinction is made between Obamacare’s mandate of a private product and Medicare’s mandate of payment into a public health-insurance system (and, as Cohn argues, about 25% of Medicare recipients participate in private plans). You can’t allow the mandated taxation required for Medicare and Social Security and disallow an individual-mandate universal health care system. Republican commentary on this subject, especially among the candidates for President, has been fundamentally dishonest, as Charles Krauthammer demonstrates once again.

Krauthammer, you may recall, essentially came out for a single-payer system a few years ago — health care vouchers provided by the government, according to income. (I’m in favor of that too.) Today, he’s gone completely over the top in the opposite direction:

If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy.

Wow. So, essentially, socialism — the term that wingers often use, inaccurately, to describe a single-payer system — is constitutional, but a government mandate to participate in a private, free-enterprise form of insurance is not? Republican attempts to distance themselves from the Republican idea of an individual mandate do tend toward the hilarious.

Krauthammer is right on a separate point: that the Obama plan does little to control health care costs. Of course, Republicans in Congress want even less control over costs, as they demonstrated this week with their vote to abolish a crucial Medicare panel that would attempt to control costs by suggesting best practices as established by the electronic compilation of health care data. This is the dreaded “death panel” of Sarah Palin’s fevered imagination. It seems the only sort of cost control that Republicans favor is free-market competition — another lovely fantasy that has never been proved, and is probably unprovable, in the severely limited, quasi-public health care market.

One hopes the Supreme Court will review all this with clear eyes. I, for one, would be surprised if Obamacare is overturned.